The appeals court for the federal circuit has reversed and remanded a decision from the Merit Systems Protection Board dismissing a whistleblower complaint on the grounds that it
lacked subject matter jurisdiction to hear it, saying in effect that canceling a vacancy announcement in order to not hire a candidate is exempt from the whistleblower protection act.
The plaintiff was removed from his Coast Guard position in October 2000, and after appeal, his removal was changed to a
resignation, according to appeals court decision 05-3311.
It said that soon after, the plaintiff applied for a position with the Department of the Interior’s Materials Management Service — but after he interviewed for that position the agency canceled the vacancy announcement rather than making a selection.
The agency then issued two more announcements and hired another electrical engineer for the position the plaintiff had originally applied for, the appeals court said.
It said the plaintiff then filed a whistleblower complaint with the Office of Special Counsel alleging he was not selected because of whistle-blowing activities, and that OSC eventually closed it, at which time the plaintiff filed an individual right of action appeal with the MSPB.
The administrative judge found the plaintiff had proved nearly everything necessary to proceed — that he had exhausted his administrative remedies before the OSC, had made non-frivolous allegations that he made a protected disclosure in his former job, and that the disclosure played a part in his not being selected.
However, the AJ dismissed the complaint having found the plaintiff did not make a non-frivolous allegation that the agency took or
failed to take a personnel action as defined under the WPA.
The AJ decided that an applicant’s non-selection for a position that results from the cancellation of a vacancy announcement does
not constitute a “failure to take a personnel action” within the meaning of the WPA, and that MSPB therefore lacked subject matter
jurisdiction and dismissed the case.